International Criminal Law Roundup: Part II

This is Part II of an international criminal law roundup focused on the ad hoc international and hybrid tribunals. Part I was dedicated to developments at the ICC. Part III will survey some domestic proceedings involving international criminal law. This series is inspired by the recently concluded IHL Dialogs in Chautauqua, NY, which bring together international criminal law professionals from all the major justice institutions for rejuvenating discussions about the challenges of promoting international justice.

An Appeals Chamber also reversed an acquittal of Vojislav Šešelj and found him responsible for the deportation and persecution of non-Serbs from Vojvodina in Northern Serbia, including through acts of incitement. The Appeals Chamber did not reverse acquittals for inciting other crimes in Bosnia and Croatia during the conflict. Šešelj was sentenced to 10 years’ imprisonment and released for time served. The MICT is also conducting a retrial (the first in the ICTY’s history) of Jovica Stanišić & Franko Simatović, who had been found not guilty by a Trial Chamber. Rather than reverse this verdict, the Appeals Chamber ordered a retrial, which has been taking place before the MICT since June 2017. The Prosecution phase concludes next month.

In a side development, the MICT lost Turkish Judge Aydin Sedaf Akay, who was arrested in his home state in 2016 after the July coup attempt. Judge Akay was charged with being a member of a “terrorist organization” and released in June 2017 pending his appeal. In principle, MICT judges are entitled to privileges and immunities that are equivalent to those enjoyed by diplomatic envoys, per the MICT Statute set forth in Security Council Resolution 1966 (2010). In a controversial move, which drew strong criticism from the MICT’s President Theodor Meron, the U.N. Secretary General did not reappoint Judge Akay to the MICT in June 2018 when his term expired, although all the other willing judges were extended. MICT judges generally work remotely and are paid only when actively engaged in an adjudication.

In terms of ongoing proceedings in Case 002, the trial of the Khmer Rouge leadership was further split into phases. In Case 002/01, the ECCC in 2014 convicted Khieu Samphan and Nuon Chea for crimes against humanity and sentenced them to life in prison. Case 002/02 concluded in June 2017 and involves a broader set of charges, including genocide (against the Cham Muslims and individuals of Vietnamese descent) and various forms of sexual violence and forced marriage. The verdict and judgment are expected in November 2018.

In other news, on August 17, 2018, the ECCC dismissed 1,400 applications from victims in Case 004/2, including some Cambodian-American victims represented by the Center for Justice and Accountability. This decision is subject to appeal.

3. The Residual Special Court for Sierra Leone

The Special Court for Sierra Leone (SCSL) technically closed its doors in 2013 and became a Peace Museum. However, it has its own residual mechanism—the Residual Special Court for Sierra Leone (RSCSL)—which remains in operation with a skeletal staff to handle issues that continue to arise. The RSCSL, which unlike the MICT has no active judicial mandate, is dealing primarily with issues such as petitions for early release, appointments of new counsel, and the like. The international community had launched an effort to fold the RSCSL into the MICT and relocate it to Arusha, Tanzania, but in the end it was decided to retain the RSCSL’s separate legal personality in light of its unique mandate and expertise. The RSCSL operates according to a roster mechanism, so staff are paid only when they are actively dealing with residual issues that arise. Nonetheless, the challenges of operating with only voluntary funding continue.

The issue of early release has proved to be somewhat controversial in ICL since the international tribunals were not specifically empowered by their constitutive statutes to grant any form of parole (although those instruments do mention pardons and commutation). The judges have determined that they have the inherent authority to order early release upon application by a prisoner who has completed 2/3 of their time. The remaining sentence is then served in a designated location with agreed-to conditions and active supervision. The relevant OTP almost always opposes such motions on the grounds that early release orders are ultra vires and, in any case, the crimes in question should not be subject to early release.

The President of the RSCSL is responsible for ensuring that the prison conditions of SCSL defendants meet international standards. Charles Taylor, the former President of Liberia and the most high profile of the SCSL’s defendants, has taken advantage of the RSCSL’s continuing jurisdiction over his incarceration. Taylor was prosecuted by the SCSL but within the ICC premises and is serving a 50-year sentence in the United Kingdom thanks to a special parliamentary enactment. He was never prosecuted for his role in the ruinous Liberian civil war; instead, the SCSL tried him for his support for the Revolutionary United Front in neighboring Sierra Leone. The case is significant because it proceeded without the consent of Liberia, Taylor’s nationality state. Liberia’s President Ellen Johnson-Sirleaf eventually blessed the SCSL process in 2006 when she sought Taylor’s extradition from Nigeria, where he was enjoying safe haven, so that he could be handed over to the SCSL. Nigeria finally turned him over, but only in the face of pressure from the United States, including from President George W. Bush, who refused to meet with President Olusegun Obasanjo until he had done so.

Part III of this post will address some ICL developments in domestic courts as exercises in complementarity.

Image: Prosecutor Serge Brammertz gives a statement in relation to the judgement in the case of Prosecutor vs. Ratko Mladic the Trial Judgement for the International Criminal Tribunal for the former Yugoslavia (ICTY) on November 22, 2017 in The Hague, The Netherlands. Photo by Michel Porro/Getty Images

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About the Author(s)

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own.
Follow her on Twitter (@BethVanSchaack).